SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPN.OF INDIA vs RAMKRISHNA MANIKRAO PUSADKAR

WE may briefly observe that the case law cited by both the parties in support of their respective points of view, does not substantially reflect on the question posed for our consideration; whereas one side has treated the ailment as most insignificant and does not affect the claim, the other side is supporting the repudiation on the ground of bona fide consideration. The main question is whether the respondent/complainant had truly answered the 3 questions in Clause 11 of the policy.

FOR this purpose, a brief review of the facts may appear to be necessary. The complainant took out ''Asha-Deep'' Policy No. 970590705, dated 27th November, 1993 from the appellant-Insurance Company and the sum assured was Rs. 50,000/-. The premium was paid regularly. The complainant contended that it took out the policy at the instance of son of his senior officer who was acting as opponent''s agent. The complainant was never acquainted with the relevant clauses of the insurance policy. Due to over-sitting work, he developed anal fisures and fistula for which he has taken treatment. However, when the policy was taken out, the agent who as indicated above, was the son of his senior officer and the doctor who examined the complainant indicated to the complainant that reference to treatment of anal fisures and fistula was not considered material and it need not be mentioned in the policy. In January, 1995, the complainant developed weakness and was, therefore, hospitalised in Medical College. The complainant was diagnosed as a heart patient and was, therefore, operated by Dr. Deshpande for change of one valve. The operation cost him Rs. 1.25 lakhs. The complainant claimed this amount from the appellant to the extent of Rs. 50,000/-.

The appellant repudiated the claim and contended that the complainant had concealed material fact about his treatment of fistula, etc. The complainant, therefore, challenged the repudiation and the District Forum in its judgment in C. No. 296/97, upheld the claim of the complainant and directed the appellant Insurance Company to pay Rs. 50,000/-. The District Forum felt that the ailment complained of by the appellant had no nexus with the heart treatment which the complainant faced in the year 1995. The judgment in Ajay Prakash Mittal v. Life Insurance Corporation of India case reported in I (1998) CPJ 2 (NC)=1997 (5) CTJ page 749, could not be relied upon as the fisures and fistula were not referred in the Insurance Manual, so far as this case is concerned.

WE find that the complainant undoubtedly was treated by Dr. A.W. Badwik for anal fisures with bleeding, from 20.7.1992 to 8.8.1992 and by Dr. Ravi Charde for fistula in ANO H/O Cronic constipation and pains together with discharge from D/Anas from 15.1.1993 to 20.1.1993. WE find that these dates are not disputed even by the complainant. WE do not feel that this was material. Now, when we turn to the relevant questions in the proposal for insurance, we find that in Clauses 11(a), (b) and (c), to life assured has to answer as to whether during 5 years prior to the policy, the life assured consulted the medical practitioner for any ailment requiring treatment for more than a week ? Whether the life assured was admitted to the hospital or nursing home for general check up, observation, treatment and operation and whether the life assured has remained absent from place of work on grounds of health during the last 5 years. The above treatment by Dr. Badwik and Dr. Charde would amply establish that the respondent-complainant had consulted the doctors and taken treatment for more than a week. We, therefore, feel that it was the bounden duty of the complainant to mention about this ailment and treatment while filling up the proposal. It is the settled position of law that contract of insurance is based on utmost faith and that the life assured must reveal all ailments. We may further point out that fisulta in ANO is one of the items contained in the Written Manual of the LIC which empowered the LIC to refuse or to accept or to determine the date of commencement of insurance policy. If that be so, the concealment of these facts by the complainant clearly amounts to breach of faith and calls for repudiation.

THE learned Counsel for the respondent contended that the agent and the doctor did not indicate that such ailment should be mentioned. It has no nexus to the heart problem. We feel that this lapse would have been well made up by the respondent by filing the affidavit of the agent. Apart from that, the story is very clear as regards the non-reference of the ailment suffered by the complainant. The Punjab State Commission''s view in the case of LIC v. Mahindra, reported in 1998 (1) CC page 101, in our view, is not binding. Apart from that the evidence regarding concealment of the ailment was not convincing. Here, there is a clear breach of terms of the policy. We, therefore, hold that the order of the District Forum cannot be upheld. Accordingly, we pass the following order : Order The appeal is allowed. The order of the District Forum is set aside. The original claim is dismissed. No order as to cost. An amount, if any deposited by the appellant-LIC shall be refunded to the LIC. Appeal allowed.